Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1 is a legal decision of the British contract by the Court of Appeal, which has an advertisement containing certain conditions to obtain a prize given an acceptable binding unilateral offer by anyone who does its terms. This is important for curious subjects and how influential judges (especially Lindley LJ and Bowen LJ) develop the law in inventive ways. Carlill is often discussed as a preliminary contract case, and may often be the first legal case studied by law students in contract law.
The case relates to a flu drug called "carbolic spheres". The manufacturer advertises that the buyer who found it is not working will get £ 100, a large sum of money at the time. The company was found to have been bound by its advertising, which was interpreted as an offer that the buyer, using the smoke ball, received, made the contract. The Court of Appeals holds the essential elements of all present contracts, including the supply and acceptance, consideration and intent to create legal relations.
Video Carlill v Carbolic Smoke Ball Co
Fakta
The Carbolic Smoke Ball Co. made a product called "smoke ball" and claimed it as a cure for influenza and a host of other diseases. (The 1889-1890 flu pandemic is estimated to have killed 1 million people.) The smoke ball is a rubber ball with a tube attached. It is filled with carbolic acid (or phenol). The tube will be inserted into the user's nose and squeezed at the bottom to release the steam. The nose will run, as if flushing a viral infection.
The company published ads on the Pall Mall Gazette and other newspapers on November 13, 1891, claiming that they would pay Ã, Â £ 100 (equivalent to Ã, Â £ 10,000 in 2016) to anyone who is ill influenza after using the product in accordance with the instructions provided.
Louisa's mother Elizabeth Carlill saw the ad, bought one of the balls and used it three times a day for nearly two months until she contracted the flu on January 17, 1892. She claimed Ã, Â £ 100 from the Smoke Carbon Smoke Company. They ignore two letters from her husband, a lawyer. At the third request for the prize, they replied with an anonymous letter that if used correctly, the company has full confidence in the efficacy of the smoke, but "to protect themselves from all fraudulent claims" they will need it to come to the office to use the ball every day and checked by the secretary. Mrs Carlill brought the claim to court. The lawyers who represent him argue that advertising and his dependence on contracts between the company and him, so the company must pay. The company believes it is not a serious contract.
Maps Carlill v Carbolic Smoke Ball Co
Judgment
The Ballbolic Smoke Ball Company, represented by H. H. Asquith, lost his argument at Queen's Bench. That's instantly interesting. The Court of Appeals unanimously dismisses the company's argument and declares that there is a fully binding contract for Ã, Â £ 100 with Mrs. Carlill. Among the reasons given by the three judges are (1) that the advertisement is not a unilateral offer to the rest of the world but the offer is limited to those acting on the provisions contained in the advertisement (2) that the satisfactory conditions for using the ball of smoke constitute acceptance of the bid ( 3) that purchasing or using only smoke balls is a good consideration, since it is a distinct disadvantage that occurs at the behest of the company and, furthermore, more people buying smoke balls by relying on advertising is obviously beneficial to Carbolic (4) the company that Ã, Â £ 1000 deposited at the Alliance Bank shows serious intent to be legally bound. The court ruling is as follows.
Lord Justice Lindley
Lindley LJ gave her the first appraisal, after finding the facts again. He made little attention from insurance and bet the contract arguments dealt with at Queen's Bench.
He goes on basically five points. First, the ad is not "solely" as the company alleges, because a £ 1,000 deposit in the bank shows seriousness. Second, an ad is a bid that is tailor-made for anyone who carries out a provision in the ad rather than a "not made with anyone specifically." Third, acceptance communication is not required for the contract when the behavior of people manifests the intention to contract. Fourth, that the obscurity of advertising provisions is not an insurmountable obstacle. And fifth, Mrs. Carlill's consideration (what she gave in return for the offer) is good, because there are advantages in additional sales in reaction to advertising and the "different discomforts" people face when using smoke balls.
Lord Justice Bowen
Bowen LJ's opinion is more structured in style and is often quoted. Five key steps in his reasoning can be identified. First, he says that the contract is not very clear to uphold, because it can be interpreted according to what ordinary people will understand it. He is slightly different from Lindley LJ at the time period where a person could have the flu and still has a claim (Lindley LJ says "reasonable time" after use, while Bowen LJ says "while smoke ball is used"), but this is not a crucial point, the fact is Mrs. Carlill was exposed to flu when using a smoke ball. Secondly, like Lindley LJ, Bowen LJ says that the ad is not solely because £ 1000 is kept in the bank to pay the rewards. Thirdly, he says that even if the bid is made worldwide, contract is not with the rest of the world. Therefore, it is not an absurd basis for a contract, because only those who use it will bind the company. Fourth, he said that communication does not need to accept terms of supply; behavior and should be enough. Fifth, good judgment is clearly given by Mrs.. Carlill because he went to the "inconvenience" to use it, and the company profited from additional sales.
Lord Justice AL Smith
AL Smith's LJ decision is more general and in line with Lindley LJ and Bowen LJ's decisions.
Significance
Carlill is often cited as a major case in general contract law, especially when unilateral contracts are noticed. This may be due to the Adviser's strategy for the Defendant in carrying out almost any defense available, which requires the court to handle these points in turn in the decision.
It provides an excellent study of the basic principles of contract and how they relate to everyday life. This case remains a good law. It still binds the lower courts in England and Wales and is quoted by the judge with consent. However, in addition to the contractual remedies afforded to users, the same facts will result in additional legal damages and penalties are individuals for placing ads in the same terms today.
First, misleading advertising is a criminal offense. Under Consumer Protection from Unfair Trade Regulation (secondary law, passed under the 1972 European Community Act), Rule 5 states that commercial practices are misleading...
"if it contains false information and therefore is dishonest... or if or overall presentation in any way deceives or tends to deceive the average consumer... even if the information is factually correct"
... in relation to the long list of actions and negligence by the seller. Unrighteous misleading practices (r 3) and unfair practices are prohibited (r 4). They are also a crime (rr 8-18) and are supervised by a tight enforcement mechanism (rr 19-27). The seller still has a defense against legitimate "speed", or that their representation can not be taken seriously (for example "this detergent powder makes your clothes whiter than white!").
Secondly, although not discussed in this case, there is evidence at the time that using smoke balls actually made people more susceptible to flu (carbolic acid was put into toxic lists in 1900). The Product Safety General Regulations that are part of the EU consumer protection regime (Directive 2001/95/EC) once again provide criminal penalties for unsafe products.
Third, the Consumer Protection Act 1987 (which is also part of the broad EU regulations under Directive 85/374/EEC) creates a strict liability lawsuit for defective products that causes any kind of personal injury or death, or damage more than  £ 100. This is the main method for individuals to get compensation for losses caused by the product. A similar regime for product obligations has grown worldwide through laws and laws since the early 20th century, one of the major cases being Donoghue v Stevenson .
Fourthly, under the Company Law of 2002, 8, as in most developed countries, industry members form trade associations. Businesses are expected to collectively manage one another by drafting the Code of Practice and having mechanisms for enforcement before a lawsuit or criminal law.
Viewed with modern eyes, many argue that Carlillin should be seen as a fragrance from another era, not a fundamental case in contract law. For example, Professor Hugh Collins writes the following.
"The ridiculous circumstances in this case should not obscure the staggering rate that makes the court prepare for social relations in the case of contracts.The alleged contractors never meet or communicate with each other directly nor do they exchange the goods, the contract law is used by courts as a means to downplay misleading and wasteful claims in advertising and to hinder the marketing of unproven, and possibly harmful drugs... The judges run a shopping list of questions: Is there a promise? Is the promise serious and intended to be followed up? the promise is definite and definite? Is the pledge accepted by the plaintiff? Does the plaintiff take some action in exchange for a promise?... the generalities and abstractions of the rule allow both the widespread use of [contract law] and its application to the case, without discussion of matters like that, the moral claim of the parties, the fitting nature ar for drugs and problems generated by misleading advertising... His doctrinal integrity helps to achieve legitimacy, because law can be presented as objective and neutral, not a matter of politics or preference, but a set of rules and principles, legitimized by tradition and regular obedience , and applied fairly and equitably to all citizens. "
Professor A. W. B. Simpson, in an article entitled 'Kwekeri and Contract Law' provided the background of this case as part of a fear arising from the Russian pandemic influenza of 1889-90. He points out that no one knows what the flu actually is, or how to prevent or cure it. After being patented, Carbolic Fly Balls in fact became somewhat popular in many respected circles including the Bishop of London who found him "very helpful to me". Its inventor, Frederick Roe, has been advertising a lot when the epidemic hit London, which gained widespread press coverage. But in the Pall Mall Gazette (just one example where he advertises) there are many, many more dukun medicines for misconceptions. After the case has been decided by the Court of Appeals, it meets with general consent, but mainly from the medical community. The Pharmaceutical Society of Great Britain has been fighting constantly against quack drugs, and wants to specifically get carbolic acid on the toxic list since 1882. Although without sympathy for the Smoke Carbon Smoke Company itself, Simpson doubts whether Carlilli has been decided properly.
"The analytical problem comes in a very acute form in the case of a sphere of smoke.So it seems very strange to say that there is some sort of agreement between Mrs. Carlill and the company, who did not even know its existence until January 20., when her husband wrote to them to complain. previous cases allowing the restoration of advertised gifts; the main case here is Williams v Carwardine , in which a prize of £ 20 was promised by a flyer for information leading to the assassination of Walter Carwardine, and Williams , who gave such information, succeeded in suing to regain the prize, but it was long before more modern doctrine had become so strong in legal thought, and in the case it was quite distinguishable, involving gifts, while Mrs. Carlill sought compensation, at least there are only a few complainants for this, but there is no limit on the number of possible people n catch the influent. za. In addition, the Smoke Carbon Smoke Company does not have the opportunity to check the validity of the claim, which may be an infinite number; much of it is made from this point in the argument. But the judges were not impressed with these difficulties, and their attitude was undoubtedly influenced by the view that the defendants were rogues. They fit their decisions into the legal structure by boldly stating that the performance of the condition is acceptance, thus fictitiously expanding the concept of acceptance to cover up the facts. And, since 1893, law students have been introduced to the mystery of unilateral contracts through Carlill v Carbolic Smoke Ball Co.'s vehicle. And is taught to repeat, as a kind of magical spell of contract law, that in the case of a one-sided contract performance of the action specified in the offer constitutes acceptance, and does not need to be communicated to the offeror. "
In the much later American case of the Southern District of New York, Leonard v Pepsico, Inc. , Judge Kimba Wood wrote,
"The fundamental duration of the law school curriculum, the Carbolic Smoke Balls owes its fame not only to" the slightly mysterious comics and objects involved "... Ã, but also to its role in developing unilateral bidding laws."
Mr. Leonard has sued Pepsi for getting the fighter jets featured in TV commercials. One should probably get a jet if someone has earned a lot of "Pepsi Points" from buying soft drinks. Held that Mr. Leonard could not get a fighter jet, because the ad was not serious. Melting the "Pepsi Points" could mean various rewards, but the jet fighter thing was a real joke. Kimba Wood J differentiates the case for a number of different reasons from Carlill , but it is clear that not all ads are always taken seriously.
Aftermath
After the action, Mr. Roe formed a new company with limited responsibility, and started advertising again. Many people conclude after reading the case that the Smoke Carbolic Smoke Company will be torn down by thousands of claims. The company has no limited liability, which could mean personal destruction for Mr. Roe. In its submission to the Court of Appeals, Finlay QC has used it as an argument against accountability. He said that 10,000 people might now sniff out the ball hoping for their £ 100, and that would be a travesty for causing bankruptcy on this unfortunate company. But this does not happen at all. In a new ad on February 25, 1893 at Illustrated London News , Mr. Roe cunningly transformed all the lost cases into his profits. He described the wrong advertisement, and then said,
"A lot of thousands of Carbolic Smoke Balls are being sold in these ads, but only three people claim a prize of £ 100, thereby proving convincingly that this priceless drug will prevent and cure the above-mentioned illness.CARBOLIC SMOKE BALL COMPANY LTD.Now offers 200 Â £ GIFT to people who buy Carbolic Smoke Ball and then have one of the following diseases... "
In the small print of the ad there are some restrictive conditions, with a period of 3 months to use the ball and claims, indicating that legal advice has been obeyed. Mr. Roe left the new company's management to customers and other new directors, who did not pursue aggressive advertising policies. In 1895 the company had fallen on hard times, and it had to end in 1896. Simpson pointed out that the new management "has failed to grasp the fact that powerful advertising is essential to success in the field of quack drugs." Mr. Roe himself died at the age of 57 years on June 3, 1899, tuberculosis and heart valves.
The defenders who did not succeed in the lower court, H. H. Asquith, later became Prime Minister of the United Kingdom.
Mrs Louisa Carlill, however, lived to be 96 years old. He died on March 10, 1942, according to his doctor. Joseph M. Yarman, especially the elderly. But there is one other cause noted: influenza.
See also
- English contract law
- Invitation to treat
Note
References
- Simpson, A. W. B. (1985). "Quackery and Contract Law: Carbolic Smoke Ball Cases". Journal of Legal Studies . 14 (2): 345-389. doi: 10.1086/467776. JSTORÃ, 724433. Ã, For the discussion of the historian the law of the famous case. Collins's
- Contract Law: Law in Context (fourth edition). London: LexisNexis Butterworths. ISBNÃ, 0-406-94673-6. For the critical and social analysis of the case and its place in the 19th century free market philosophy.
- Poole, J. (2003). Contract Law Handbook (6th ed.). New York: Oxford University Press. ISBN: 0-19-926059-1. For basic discussion and assessment analysis.
- Carlil v Carbolic Smoke Ball Company (1893) 1 QB 256.
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External links
- The full text of the High Court's decision on Bailii
- Complete legal report from Justis
Source of the article : Wikipedia
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